In December 2019, a Colonel, who was entering the reserves,
received a phone call from Alejo de la Torre, the chief of cabinet of the
Undersecretary of Defense, who summoned him to a meeting in his office on
December 10, 2019. The Colonel appeared
at the meeting where De la Torre handed him a document that informed him that
proceedings against him had been opened for possibly having committed a minor
offense based on disrespectful comments towards the Armed Forces that he allegedly
made in his farewell speech during a dinner on December 3, 2019 in El Alcazar,
the Military Residence.
At the dinner, the Colonel commented that the awarding of a
post in the Public Prosecutor’s office in Madrid to the wrong person in his
opinion, had been arbitrary and caused him great pain. Many of his military colleagues
were at the dinner and heard him call the appointment made by the Minister of
Defense "arbitrary". The Colonel was
sanctioned with loss of three days’ pay.
The Colonel appealed the sanction before the Central
Military Court, claiming that his fundamental rights had been violated: the
presumption of innocence, the right to defense, freedom of expression, the
principle of legality and the obligation to issue a resolution in disciplinary
proceedings. The Central Military Court
found for the Colonel and annulled the sanction because they found that the
disciplinary proceedings had not been handled correctly. The Colonel had been summoned by telephone,
without urgency, he was not given reasons for the meeting, etc.
The State Legal Service (Abogacía del Estado) appealed in cassation and the case went to the Fifth Chamber of the Spanish Supreme Court, which deals with military matters. The Supreme Court agreed with the State Legal Service that the Central Military Court had required procedures that are not set forth in the law regarding disciplinary proceedings. The Supreme Court agreed that it was not necessary to reveal who denounced the Colonel or how the information that led to his sanction came to the Undersecretary. The Supreme Court held that the military had respected the legal framework for the imposition of a sanction for a minor offense. The fact that he was informed by telephone also did not affect his right to defend himself. The Supreme Court also dismissed the Central Military Court’s finding that there was no urgency to the summons, and that the Colonel should have been summoned in writing so that he could be accompanied by a lawyer. It held that the Central Military Court’s decision trivialized the preferred oral nature of the proceedings for minor offenses and remanded the case to be decided again along the lines of its judgment.